Holder, GOP open to talks before contempt vote

Attorney General Eric holder speaks to reporters following his meeting on Capitol Hill in Washington, Tuesday, June 19, 2012. Holder wants a House panel to drop plans to try to hold him in contempt of Congress, and the panel's chairman wants more Justice Department documents regarding Operation Fast and Furious, a flawed gun-smuggling probe in Arizona. Holder and Rep. Darrell Issa, a California Republican, met in an effort to resolve their dispute over the investigation of Fast and Furious by the House Oversight and Government Reform Committee that Issa chairs. (AP Photo/Susan Walsh)

WASHINGTON (AP) — House Republican officials and Attorney General Eric Holder said they’re willing to negotiate an end to a potential constitutional confrontation in a dispute related to the botched “Fast and Furious” gun-tracking operation.

Nevertheless, House leaders from both parties traded barbs over the issue Thursday.

House Speaker John Boehner took a hard line, insisting the House intends to vote next week on a contempt of Congress resolution against Holder unless additional documents demanded by Republicans are turned over to Congress.

Boehner renewed his allegation that President Barack Obama’s decision to assert executive privilege to withhold the documents “is an admission the White House officials were involved in the decision that misled the Congress and covered up the truth.” In fact, historically, several presidents have invoked executive privilege over Cabinet department documents that did not directly involve White House officials.

Democratic Leader Nancy Pelosi accused Republicans of pursuing Holder in an effort to suppress votes in the upcoming elections, because he is in charge of safeguarding voting rights. “I’m telling you, this is connected,” she told reporters.

Holder, in Copenhagen, Denmark, for meetings with European Union officials, said the administration had given the House Oversight and Government Reform Committee a proposal to negotiate an end to the conflict.

“I think the possibility still exists that it can happen in that way,” Holder said. “The proposal that we have made is still there. The House, I think, the House leadership, has to consider now what they will do, so we’ll see how it works out.”

But he called the contempt vote “unwarranted, unnecessary and unprecedented.”

During the year and a half long investigation by the House Oversight and Government Reform Committee, the Justice Department turned over 7,600 documents about details of Operation Fast and Furious. But, because the department initially denied and then admitted it used a risky investigative technique known as gun-walking, the committee has turned its attention to how the Justice Department responded to the investigation. The additional documents it seeks are about that topic.

White House press secretary Jay Carney said there was “absolutely” no cover up on the Fast and Furious controversy. He said executive privilege was asserted only on internal deliberations and “that is separate from trying to find out the truth about this operation.”

Committee officials who would conduct any negotiations in the coming days for Oversight Committee Chairman Darrell Issa, R-Calif., said they are looking for at least some additional documents on Fast and Furious — plus some “signs of good faith.”

The latter could include substantive responses to future committee requests for documents; reforming the approval process for wiretap applications; acknowledging mistakes in misleading Congress about Fast and Furious; taking whistle-blowers seriously; and producing a log of documents to be turned over, according to the officials, who spoke only on condition of anonymity because they weren’t authorized to discuss the issue by name.

The administration would have to abandon the president’s assertion of executive privilege — a legal position that attempts to protect internal executive branch documents from disclosure. If the administration maintains that stance, it could lead to court fights that could take years to resolve.

The last Cabinet member to be cited by a congressional committee for contempt was Attorney General Janet Reno in President Bill Clinton’s administration. That was never brought to a follow-up vote in the full House.

Technically, if the full House approves the Holder contempt citation, there could be a federal criminal case against him, but history strongly suggests the matter won’t get that far.

Democrats contended that the 23-17 party-line contempt vote Wednesday was just political theater. The committee’s top Democrat, Rep. Elijah Cummings of Maryland, called the vote “an extreme, virtually unprecedented action based on election-year politics rather than fact.”

While Boehner and House Majority Leader Eric Cantor would make the final decision on postponing a vote, aides to the speaker and Issa said the chairman and his staff would conduct any upcoming negotiations — as they have been doing throughout the year.

During the committee’s year-and-a-half-long investigation, the Justice Department has turned over 7,600 documents about the conduct of the Fast and Furious operation. Justice initially told the committee the operation did not use a risky investigative technique known as “gun-walking” — but later acknowledged that it did.

Agents of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives in Arizona abandoned the agency’s usual practice of intercepting all weapons they believed to be illicitly purchased. Instead, the goal of gun-walking was to track such weapons to high-level arms traffickers, who had long eluded prosecution, and to dismantle their networks.

Gun-walking has long been barred by Justice Department policy, but federal agents in Arizona experimented with it in at least two investigations during the George W. Bush administration before Fast and Furious. These experiments came as the department was under widespread criticism that the old policy of arresting every suspected low-level “straw purchaser” was still allowing tens of thousands of guns to reach Mexico. A straw purchaser is an illicit buyer of guns for others.

The agents in Arizona lost track of several hundred weapons in Operation Fast and Furious. Two of the guns that “walked” in the operation were found at the scene of the slaying of U.S. border agent Brian Terry.

The Issa aides believe that a few hundred pages of documents may satisfy them, providing those records tell the story of how the Justice Department came to understand that it gave Congress false information on Feb. 4, 2011. The department said at that time that the Bureau of Alcohol, Tobacco, Firearms and Explosives had made every effort to interdict weapons moving from Arizona to Mexico.

More than 10 months later, the department retracted that statement after it became clear that the guns were not intercepted but allowed to enter Mexico in hopes that officials could track them to drug lords.

The flaws were exposed by whistle-blowers who contacted Sen. Charles Grassley, R-Iowa.

Holder offered to give lawmakers a briefing on the withheld documents but insisted that this action satisfy Issa’s subpoena for the records and negate the need for a committee contempt vote. Issa rejected the offer, saying it was an attempt to force an end to the committee’s investigation.

The wiretap approval process is important to Issa because, he contends, the Justice Department gave only a cursory look at applications for wiretaps on targets in Fast and Furious.

One Issa aide said the committee negotiators were looking for the administration to “generate good will that will potentially change the atmosphere on getting a deal.”

“Prosecutors: Transferring guns is legal in Arizona
This was not the view of federal prosecutors. In a meeting on Jan. 5, 2010, Emory Hurley, the assistant U.S. Attorney in Phoenix overseeing the Fast and Furious case, told the agents they lacked probable cause for arrests, according to ATF records. Hurley’s judgment reflected accepted policy at the U.S. Attorney’s Office in Arizona. “[P]urchasing multiple long guns in Arizona is lawful,” Patrick Cunningham, the U.S. Attorney’s then–criminal chief in Arizona would later write. “Transferring them to another is lawful and even sale or barter of the guns to another is lawful unless the United States can prove by clear and convincing evidence that the firearm is intended to be used to commit a crime.” (Arizona federal prosecutors referred requests for comment to the Justice Department, which declined to make officials available. Hurley noted in an e-mail, “I am not able to comment on what I understand to be an ongoing investigation/prosecution. I am precluded by federal regulation, DOJ policy, the rules of professional conduct, and court order from talking with you about this matter.” Cunningham’s attorney also declined to comment.)
It was nearly impossible in Arizona to bring a case against a straw purchaser. The federal prosecutors there did not consider the purchase of a huge volume of guns, or their handoff to a third party, sufficient evidence to seize them. A buyer who certified that the guns were for himself, then handed them off minutes later, hadn’t necessarily lied and was free to change his mind. Even if a suspect bought 10 guns that were recovered days later at a Mexican crime scene, this didn’t mean the initial purchase had been illegal. To these prosecutors, the pattern proved little. Instead, agents needed to link specific evidence of intent to commit a crime to each gun they wanted to seize.”